Challen v Golder Associates Pty Ltd [2012] QCA 339 Margaret McMurdo P, Fraser JA and Mullins J 4/12/2012
General Civil Appeal — Further Order — Costs — where appellant had filed a notice of appeal against the orders of the primary judge, when leave to appeal was required from the Court under s 118(3) of the District Court of Queensland Act 1967 (Qld) — where the appellant required an extension of time for filing the application for leave to appeal — where the extension of time for filing the application for leave to appeal was granted, without any objection from the respondent to the extension of time — where leave to appeal was granted — where the appellant was partially successful on appeal — whether costs should be awarded and on what basis — where an order for costs of the appeal should reflect that the respondent’s success was on the main issue and the appellant’s success was on the subsidiary issue — where this is an appropriate case for making one order for costs of the appeal, rather than endeavouring to make separate orders for costs of each issue — where an order that the appellant pay 50 per cent of the respondent’s costs of the appeal reflects appropriately the outcome on the issues of the appeal. The appellant is to pay 50 per cent of the respondent’s costs of the application for leave to appeal and the appeal.
Nona & Anor v Barnes & Anor [2012] QCA 346 Fraser JA, Philippides and Douglas JJ 7/12/2012
General Civil Appeal — Administrative Law — Meaning of Decision — where appellants’ brother was one of several people who died when a vessel was lost in Torres Strait — where appellants were represented at inquest conducted by respondent, the State Coroner — where inquest found loss of vessel and deaths “totally avoidable disaster” caused by people failing to carry out duties over many months — where respondent did not refer matter to Director of Public Prosecutions — where s 48(2) of Coroners Act 2003 (Qld) requires coroner to refer matter to Director of Public Prosecutions if reasonably suspects a person has committed an indictable offence — where appellants, once aware of no referral, enquired about decision not to refer to Director of Public Prosecutions and requested Coroner discharge duty to consider whether to refer — where Coroner responded that no basis on which to make referral and refused to provide reasons for that conclusion — where appellants argued that primary judge erred in holding that Coroner’s “conclusion” prior to manifestation in correspondence or otherwise did not amount to a decision under Judicial Review Act 1991 (Qld) — where appellants argued Coroner’s “conclusion” was a “determination” or the refusal of a “determination” — where appellants argued Coroner’s conclusion should be regarded as affecting legal rights or obligations because a contrary conclusion would have created a legal obligation in Coroner to give information to Director of Public Prosecutions — where Attorney-General argued primary judge’s decision correct as Coroner’s conclusion did not affect or give rise to any legal rights or obligations — where question whether there is a “decision” to which the Judicial Review Act 1991 applies must be answered with reference to the statutory context in which that word appears and the particular facts and statutory provisions of each case — where a decision-maker’s mere state of mind could not amount to a “determination” within the ordinary meaning of that word whilst the decision-maker remained free to consider the relevant question — where s 48(2) of the Coroners Act 2003 does not require a coroner to cease considering the information obtained while investigating a death immediately upon the coroner forming a view that the information does or does not give rise to a reasonable suspicion that a person has committed an offence — where the Coroner’s thought processes could not properly be regarded as a “finding” — where the appellants’ argument was also not advanced by their reference to the provision in s 5 of the Judicial Review Act 1991 that the “making of a decision” includes “(a) making … or refusing to make an order, award or determination …” because that provision does not imply that an uncommunicated state of mind which might change before it is acted upon amounts to a “determination” — where the primary judge was correct in holding that the only relevant “decision” was the decision to not send information to the Director of Public Prosecutions which was made only when the omission to send the information was manifested as a decision in correspondence from the Coroner to the appellants’ solicitor — where that decision did not satisfy the second criterion in Griffith University v Tang (2005) 221 CLR 99, that it “confer, alter or otherwise affect legal rights or obligations, and in that sense … derive from the enactment” because, as the primary judge held, the mere receipt or non-receipt by the Director of Public Prosecutions of the information would not have any effect upon any legal rights or obligations — where the Attorney-General advanced pursuant to a notice of contention that the challenged decision, however it be characterised, was one in respect of which any entitlement to reasons was excluded by s 31 of the Judicial Review Act 1991 — where the decision would involve the giving of the information to the Director of Public Prosecutions, would fall squarely within paragraph (d)(ii) in Item 1, which is one example of a decision “relating to the administration of criminal justice” — whether Coroner’s conclusion a “decision” to which the Judicial Review Act 1991 applied — whether Coroner required to provide reasons — Appeal dismissed, Leave given to make submissions on costs.
The Australian Workers’ Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor [2012] QCA 353 Holmes, Muir and White JJA 14/12/2012
Removal or Remission — Constitutional Law — The Non-Judicial Organs of Government — Power to Act Contrary to the Separation of Powers Doctrine — Justiciable Powers — where the Australian Workers’ Union of Employees, Queensland (“the AWU”) filed an originating application against the State of Queensland (“the State”) seeking certain declarations of invalidity in relation to recent amendments to the Industrial Relations Act 1999 (Qld) — where notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) was given by the Together Union parties to the several Attorneys-General — where none appeared at the hearing — where the Together Union parties submitted that s 23B of the Amendment Act, particularly by inserting s 691C(1) and s 691E(2) into the Industrial Relations Act 1999 (Qld), was invalid because it infringed a constitutional principle mandating the separation between the executive, legislative and judicial powers of the State which is sourced in the Constitution of Queensland 2001 — where except as might arise from the application of the principles identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, there is no legislative impediment to a State’s vesting judicial power in non-judicial bodies or in legislating for particular outcomes in court — where it is fundamental to Kable and the cases which follow, that the doctrine of the separation of the judicial from the legislative and executive powers of government does not apply to the States — while constitutional law is a fertile field of surprises, it may confidently be concluded that the Constitution of Queensland 2001 does not contain any constitutional principle of separation of powers — where the Queensland Industrial Relations Commission (QIRC) has power to enforce certified agreements and may make declarations or grant injunctions to facilitate or compel such compliance — where the certification process does not involve the QIRC in ascertaining, declaring or enforcing existing legal rights or obligations — when regard is had to the substance of the QIRC’s role in relation to certified agreements, it is apparent that it is administrative in nature with executive and legislative aspects — where there is no controversy to be quelled, no determination of existing rights or liabilities — where the insertion of sections 691C, D and E do not impinge in any way on the decision making independence or impartiality of the QIRC or the Court — where the legislation says nothing about the way in which the Industrial Court or the QIRC must perform their respective duties, but merely provides a legal framework for decision making — where there is no legislative or executive direction of the QIRC or the Industrial Court nor is there anything in the subject legislation which compromises the Industrial Court’s or the QIRC’s integrity and independence — where the AWU complained also of the effect of s 3B of the Amendment Act, which inserted a new paragraph in s 53 of the Public Service Act 2008 (Qld) — where s 3B, however, will not commence until 1 January 2013 — where s 3B is not presently a law to which the parties are subject, and any rights duties or liabilities which the Court might discern in it are prospective, not immediate — where there is, no justiciable matter, and this Court has no jurisdiction to consider whether s 3B of the Amendment Act breaches the Kable principle. Both proceedings dismissed with costs.
A-G (Qld) v Bosanquet & Ors [2012] QCA 367 Margaret McMurdo P and Gotterson JA and Philippides J 21/12/2012
Appeal from the Mental Health Court — where respondent was charged with one count of stalking and two counts of arson — where the Mental Health Court (MHC) found that at the material time the first respondent was of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld) — whether the MHC erred in determining that the first respondent’s mental illness deprived him of the capacity to control his actions — whether the MHC erred in determining that the first respondent’s mental illness deprived him of the capacity to know he ought not do the act — whether the MHC misapplied the concept of deprivation of capacity — where the appellant conceded that the MHC correctly set out the test as to deprivation in line with the approach in Re W (unreported, Mental Health Tribunal, Dowsett J, 14 October 1997) — where emphasis was placed by the appellant on the respondent’s degree of planning (hiring a car and purchasing petrol) and his concealment between the two arsons, his lying to police about his conduct and his statements to police of “pay back”, as incompatible with a finding of deprivation of control — where the presence of some (even limited) control is inconsistent with a deprivation (absence) of capacity, and the concept of severe or substantial impairment is not sufficient for a finding of unsoundness of mind — where the MHC erred in fact (given the misstatement of the expert evidence of Dr Grant) and law (in failing to apply the proper test in respect of Dr O’Sullivan’s evidence) in concluding that there was clinical evidence to support a finding of unsoundness of mind on the basis of the deprivation of the capacity for control — whether the MHC erred in making a finding that the first respondent’s state of mind did not result, to any extent, from intentional intoxication or stupefaction — when considering the issue of intoxication, it is important not to conflate the question of whether the respondent was on the balance of probabilities intoxicated at the material time with that of whether intoxication contributed to any extent to the relevant state of mind — where the MHC correctly noted that a finding of unsoundness is not available if “the state of mind resulted to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence” — where in respect of the contemporaneous medical records, it would not be correct to conclude that none referred to “alcohol or recent drug use”, rather the difficulty was that there were inconsistencies in the records — whether a fact that is substantially material to the opinion of the expert witnesses was so in dispute that it was unsafe to make the decision — where accepting that there is merit in the appellant’s submission that the MHC ought to have proceeded on the basis that the respondent was probably intoxicated at the material time, there was support in Dr Grant’s evidence for the finding of unsoundness of mind on the basis that the respondent’s mental illness alone resulted in the deprivation of the relevant cognitive capacity, which opinion was endorsed by the assisting psychiatrists — where there was a basis on the evidence for the MHC’s finding of unsoundness of mind, this Court ought to dismiss the appeal and confirm the decision of the MHC, albeit on the narrower basis that, at the time of the alleged offences, there was a deprivation of the respondent’s capacity to know he ought not to do the acts in question. Appeal dismissed, Decision of MHC confirmed.
Coffey v State of Queensland & Ors [2012] QCA 368 Margaret McMurdo P and Holmes and White JJA 21/12/2012
General Civil Appeal — Battery — where the trial judge found that the appellant was the subject of a battery by Corrective Services and police officers in forcing him to the floor to enable the taking of a hair sample from him — where the trial judge found that the second respondent was not physically involved in the battery and did not direct Corrective Services officers to apply force as they did — where the appellant contends that the trial judge’s findings were incorrect — where the video recording of the incident shows that the second respondent gave no directions in relation to the process by which the appellant was brought to the floor — where the video recording shows that the second respondent placed his foot on and moved the appellant’s leg while the appellant was lying unconscious on the floor — whether the findings of the trial judge were incorrect — whether the actions of the second respondent did amount to a battery — where the appellant was awarded at first instance $12,000 exemplary damages, in addition to amounts for general and aggravated damages — where the appellant contends that the exemplary damages are inadequate — where the purposes of exemplary damages are to punish and deter the wrong-doer and to ameliorate the victim’s sense of grievance — where the appellant was handcuffed and vulnerable in the power of Corrective Services officers — where the manoeuvre by the officers resulted in a significant battery sufficient to leave the appellant unconscious with a head wound — whether the award of exemplary damages was inadequate — where the trial judge here faced a difficult task in arriving at a figure for exemplary damages which met that tripartite purpose — where events of this kind are, fortunately, rare in litigation — where the appellant was handcuffed and vulnerable and in the power of the Corrective Services officers — where the manoeuvre to which they subjected him was, as the learned trial judge said, “hurried, ill prepared and excessively forceful” — where even once he had been rendered unconscious, the officers did not move promptly to assist him — where an award of $12,000 was not such as to be likely to make a real impression of the kind needed; to mark disapproval and to ensure that the first respondent took steps to deter such conduct for the future — whether the trial judge erred in the exercise of his discretion. Appeal allowed, Judgment sum increased from $12,000 to $43,628.80, Judgment in the sum of $600 against the second respondent in respect of the claim of battery, Costs (Brief).
Kellas-Sharpe & Ors v PSAL Limited [2012] QCA 371 Margaret McMurdo P, Gotterson JA and Fryberg J 21/12/2012
General Civil Appeal — Contracts — Penalties and Liquidated Damages — where appellants and respondents entered into a loan agreement — where the standard rate of interest was 7.5 per cent per month but, while the borrower is not in default, the concessional rate of interest at 4 per cent per month applies — where the first appellant, Wendy Kellas-Sharpe, is a registered nurse and experienced investor — where companies with which she was associated would borrow and lend money and make investments with borrowed money — where the appellants failed to repay any of the Principal sum on or before the Repayment Date in the Loan Agreement — where the appellants argue that the rule that a concessional rate of interest for prompt payment is not a penalty ought to be discarded and not applied — where it is not open to this Court to accept the invitation made on behalf of the appellants to consign the rule to history and not to apply it — where although the correctness of the rule appears never to have been affirmed after a deliberate examination of it by the High Court, it has been acknowledged more than once by members of that Court — where further the rule has also been recognised by intermediate courts of appeal in Australia — where one ought to guard against replacing one anomaly with another, particularly with an anomaly which would involve not giving any recognition to the fact that contemporary commercial lending covers a wide spectrum of lending for the short term as well as for the medium and long term by traditional large institutional lenders and as well by small specialised lending entities with different funding arrangements and risks — whether the clause is a penalty with the consequence that the interest rate provision is void — where the appellant’s submissions do raise matters which give cause to question the appropriateness for contemporary times of the rule and the distinction it makes — where, however, this Court is constrained by authority to apply it. Appeal dismissed with costs.
CRIMINAL APPEALS
R v Gordon [2012] QCA 334 Holmes, White and Gotterson JJA 4/12/2012
Sentence Application — where applicant pleaded guilty to 11 counts of unlawful use of postal service contrary to s 471 of Criminal Code 1995 (Cth) and one count of unlawful possession of weapons contrary to s 50 of Weapons Act 1990 (Qld) — where, in summary, the applicant sent 11 letters to a number of public figures and one private individual over the three year period containing either actual explosives or correspondence that contained a threat to kill, a bomb hoax or a communication that a reasonable person would find menacing — where applicant was sentenced to two and a half years imprisonment to be released after eight months — where the applicant has no criminal history which predates his arrest on these matters — where the primary judge was mindful of the applicant’s age and health condition when he sentenced him and he took due account of those two factors when he set the release date after eight months on a two and a half year sentence, that is, after serving just under 27 per cent of the sentence — where applicant was 81 years of age at sentence and in poor health — where applicant had already served 17 weeks and one day at application hearing — whether sentence was manifestly excessive in all the circumstances — whether applicant ought to be released forthwith — where it cannot be said that in reducing the time to be served to eight months that the primary judge failed to give adequate recognition to those factors which are the basis of the application for leave to appeal against sentence. Application refused.
R v Hung [2012] QCA 341 Holmes and Muir JJA and Daubney J 7/12/2012
Appeal against Conviction — Misdirection — where the appellant was convicted on one count of manslaughter — where the appellant had punched the deceased, causing his death — where the evidence about the extent of force of the punch was mixed — where the appellant argued that the trial judge misdirected the jury in relation to self-defence against unprovoked assault in s 271(1) of the Criminal Code — where the trial judge referred to the word “likely” in the context of “likely to cause death or grievous bodily harm” in s 271(1) as being a substantial likelihood, which might be less than 50/50 but had to be more than a remote or speculative possibility — where the trial judge directed on likelihood of death or grievous bodily harm and “possible outcome” in the context of accident in s 23 in almost identical terms — whether explaining what amounted to a substantial likelihood by distinguishing it from a remote or speculative possibility was a misdirection — whether equating “likely” in s 271(1) with “possible outcome” relating to accident in s 23 was a misdirection — where the reference in the direction to “substantial likelihood” could give no cause for complaint — where the explanation of a substantial likelihood as something which “may be less than 50/50 but a remote or speculative possibility is not enough” does, as the appellant says, carry the risk of giving the jury the impression that anything better than a remote or speculative possibility would suffice — where it is true that what the trial judge said departs from what was said in Boughey v The Queen (1986) 161 CLR 10 by only a word or two, there is a significant difference between a “real and not remote chance” and a possibility which is put no higher than that it is better than remote or speculative — where the greater vice in the learned judge’s directions is that they equated a “likely” result with a “possible outcome”: the same explanation was given for the latter in the context of accident as was given for the former in relation to self-defence — where to direct in relation to s 271(1) in the same terms as for s 23 was an error — where that misdirection was critical in this case because the evidence about the extent of the force used was far from conclusive — where the way the jury approached its finding as to likelihood of death or grievous bodily harm was thus of fundamental importance and demanded accurate direction — whether a miscarriage of justice resulted. Appeal against conviction allowed, Conviction and verdict set aside, Re-trial ordered.
R v Gulbis-Paris [2012] QCA 348 Margaret McMurdo P and White JA and Douglas J 7/12/2012
Appeal against Conviction & Sentence — where appellant was convicted of doing grievous bodily harm by throwing a glass which hit and shattered against the complainant’s face — where a fight had broken out at a hotel in which numerous people were involved — where scene was crowded and dimly lit — where broken glass allegedly causing injury never found — where only one heavily intoxicated witness testified to seeing the appellant hit the complainant with the glass — where other witnesses gave differing accounts of when and how the glass broke, and how the complainant suffered injuries — where no medical evidence was led at trial as to the likely cause of the complainant’s eye injury — where it is common in scenarios like this for different witnesses to give differing accounts — where the incident happened quickly in crowded circumstances and with dim lighting — where the independent witnesses in this case, hotel patrons Auda and Eggmolesse, and employees White and Hamal, did not see any incident between the appellant and the complainant — whether the Court is persuaded that the prosecution established beyond reasonable doubt that the appellant threw the glass at the complainant causing grievous bodily harm to his eye — where it is reasonably possible the beer glass first broke during the fracas, either with the appellant or with the others resulting in the injury — whether the verdict was unreasonable or not supported by the evidence — where reasonable hypotheses consistent with innocence not excluded — where the appellant may have responded to being punched by releasing the glass in the direction of the complainant in a reflex action — where complainant may have injured eye on furniture on floor — whether the trial judge erred in not leaving s 23(1)(a) Criminal Code 1899 (Qld) to the jury. Appeal against conviction granted, Guilty verdict set aside and instead a verdict of not guilty is entered.
R v Banhelyi [2012] QCA 357 Holmes JA and Fryberg and North JJ 18/12/2012
Appeal against Conviction — where appellant found guilty of one count of dangerous operation of a motor vehicle causing death and grievous bodily harm of another person — where there was a circumstance of aggravation — where there was inadmissible and prejudicial opinion evidence admitted into evidence before the jury— where video footage from a roadside camera at the first intersection was tendered — where it showed the collision with the motorcyclist and the movement of the appellant’s motor vehicle through the intersection — where relevant to the issue for the jury was whether the appellant activated his indicator or brake lights at the first intersection and just after the collision with the motorcyclist — where a traffic accident expert (Mr Ruller) calculated the speed of the appellant’s motor vehicle at approximately 60 kilometres per hour — where the witness Ruller was called as an expert “collision analyst” — where his expertise expertise was proven when he was called and significantly his Honour informed the jury that Ruller’s expertise was not contested or challenged in any way — where in addition to commenting on the video footage and giving evidence of the activation of the lights Ruller identified some photographs, being stills from the video footage taken from the camera at the intersection and he was asked questions by reference to the photographs to identify the indicator or brake lights that were activated according to his interpretation (Exhibits 22, 23, 24 and 25) — where Ruller expressed the opinion that what could be seen might not be the activation of a light but the reflection of light from some other source but he gave emphatic evidence of the activation of the brake lights in Exhibit 23 and the activation of the right indicator lights in Exhibit 24 and 25 — whether the expert was an expert to give opinion evidence in photography or interpretation of images from video footage — where at the hearing of the appeal the respondent did not contend that the witness Ruller was qualified as an expert witness to give opinion evidence that the images depicted in the video footage and in the photographs demonstrated either the activation of the indicator or the brake lights — where once it is recognised that the evidence of the witness Ruller was not expert evidence then, absent exceptional circumstances, evidence from a witness of an interpretation of what is depicted in film or photographs was inadmissible, the issue being a matter for the jury — whether the admission of the opinion evidence occasioned to a miscarriage of justice — where the presentation to the jury of the fact of the activation of brake lights and the indicator lights is a matter of “expert” testimony was likely to suggest to jurors that the opinion evidence uncontradicted as it was by contrary “expert” opinion evidence should be accepted and acted upon by them in preference to their own interpretation — where inadmissible and prejudicial evidence was admitted that struck at the heart of the defence of non-insane automatism and deprived the defendant of an opportunity to have his defence considered by the jury in the absence of such prejudicial evidence — whether s 669E(1A) Criminal Code 1899 (Qld) applies. Appeal allowed, Verdict of guilty set aside, New trial ordered.
R v Mahony & Shenfield [2012] QCA 366 Muir and Gotterson JJA and Applegarth J 21/12/2012
Sentence Applications — where the applicants were jointly charged with numerous offences including thirteen counts of rape, making child exploitation material and torture — where the applicant Mahony was also charged with one count of attempted murder — where applicants pleaded guilty — where applicants sentenced to life imprisonment — whether the sentences imposed were manifestly excessive — where the complainant was subjected to unimaginable horrors with the learned sentencing judge opting not to dignify the abhorrent criminal acts by reciting their details — where it is beyond question that the offending of each applicant falls within, and is not recognisably outside, the worst category of cases for which the maximum penalty for rape is prescribed — where there was no serious challenge to the general proposition that the maximum penalty of life imprisonment was within range — where counsel concentrated their submissions on mitigating factors which they argued were insufficiently, or not, taken into account by the learned sentencing judge with a consequence that a manifestly excessive sentence was imposed in each case — where for Mahony, the submissions focused upon the utilitarian value of her ex-officio pleas of guilty in terms of savings to the community of costs and inconvenience and of sparing the complainant and her family from having to give evidence — where the extent of the utilitarian value of a plea of guilty in a given case can be gauged by having regard to the extent of the savings of Court and judicial time, of costs of preparation of the prosecution case and of provision of legal aid that has occurred on account of the plea — where for a case such as this one where there was not only the complainant’s timely complaint but also medical evidence of her injuries and photographic and film evidence of their infliction by the applicants, the savings can be expected to have been less than what they might reasonably be expected to be in a different case, for example, a complicated circumstantial one — where for Shenfield, reliance was also placed upon the pleas of guilty — where it was also submitted that no, or insufficient, weight was given to Shenfield’s intervention in Mahony’s attempt to murder the complainant and to his cooperation with police in making a timely statement — where an intervention of that kind has a societal dimension to it which warrants recognition in sentencing — where not to recognise it meaningfully risks giving rise to a popular belief at least, that there is no incentive given for intervention to prevent a death at the hands of a co-offender — where there is good utilitarian purpose in encouraging a co-offender who is minded to intervene, to do so, rather than to refrain from doing so in the belief that there is nothing to be gained personally by it. Mahony: Application refused. Shenfield: Application granted, Appeal allowed to the extent of substituting a term of 18 years imprisonment for the term imposed at sentence.
CIVIL APPEALS